27 F. 878 -

27 F1d 878

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Case Text

878

FEDERAL REPORTER.

had obeyed these directions, the schooner would undoubtedly have come in safely, as other vessels of greater draught have done before and since. But instead of doing as he was directed, he took in and furled his sails, got his anchor, and then proceeded to warp the schooner in by lines of great length leading to another vessel lying at the end of the wharf. The result was that the schooner, being held only by the warps, was driven by the south-west wind off to the eastward of the shoal, and, in hauling on the warps from that direction, she was drawn directly upon it. The accident appears to have happened solely from the libelant's fault. As he was unacquainted with the ground, it was especially incumbent on him to observe the advicEt and directions of the consignee, who did know it, and was also reo sponsible for the sufficiency of the water at the wharf. He can have no possible claim on the consignee for a detention occasioned by his own negligence. Libel dismissed, with costs.

The libelant made an agreement with defendant to carry a cargo of coal to Boston, and received an order, directed to defendants' agent, giving instructioDs as to the loading, etc. This order contained the following: "This order is taken by the captain subject to the conditions printed on the back hereof... On the back was this indorsement: "No .liability for demurrage or other charges shall be incurred by S. C. & Co., the cargo, or consignee thereof, for any delay in the loading; such delay to be borne by the vessel or boat." In an action for demurrage on a delay caused by S. C. & Co., it was held that the above condition was not binding on the vessel; that although it was signed by the master, this order was only a direction to the shipper's agent, and there was no proof that the master's attention had been called to the condition.

In Admiralty. Hylund cf; Zabriskie, for'respondents and appellants. Wilcox, Adams cf; Macklin, for libelant and appellee. WALLACEf, J. The libelant, through a broker, made an agreement with the defendants November 13, 1884, to carry a cargo of coal on the schooner Ireland for them from South Amboy, New Jersey, to Boston, at a specified freight. The defendant's office was in New York city, where the contract was made. They promised that the cargo should be delivered on the seventeenth day of November. The master of the schooner was present at the time of the negotiations. After the terms were agreed upon, the defendants, in the presence of the broker, handed the master an' order, directed to their shipping agent at South Amboy, instructing the latter to load the schooner with coal, stating the name of the consignee, and the rate of freight, and directing him to make an advance when the schooner was loaded. The terms of the order were written into a printed blank, which, below the signature of the defendants, contained the following: "This

RACKETT V. STICKNEY.

879

order is taken by the captain subject to the conditions printed on the back hereof." On the back was the following indorsement: "No liability for demurrage or other charges shall be incurred by Stickney, Conyngham & Co., [the defendants,] the cargo, or consignee thereof, for any delay in the loading; such delay to be borne by the vessel or boat." The master took the order without reading the conditions, and delivered it to the defendants' shipping agent. The schooner was detained, by the delay of the defendants, three days after the seventeenth, the defendants not being prepared to deliver the cargo. The district court decreed for the libelant for three days' demurrage, and the defendants have appealed. The appellants rely upon the defense that there was a special conand the libelant, whereby they were to intract between cur no liability to the libelant for any delay in loading the schooner, the delivery to and acceptance by the master of the order, with the condition on its back, constituting such special contract. As the order was delivered to the master in the presence of the broker, the case may be considered as though the order had been delivered to the broker himself, and is thus relieved of any qnestion as to the authority of the captain to modify a contract which had been concluded between the libelant and defendants. The real question, then, is whether an assent on the part of the libelant to a contract differing from that which had previously been made between the parties is to be presumed from the acceptance of the order containing the restrictive conditions as to the liability of the defendant. Assent is conclusively presumed where a unilateral instrnment, such as a deed or policy of insurance, is delivered by one of the parties to, and accepted by the other as the result of, verbal negotiations. So, also, it is ordinarily presumed where a shipper taKes from a carrier a bill of lading or receipt expressing the conditions of the reception and transportation of the goods, which, is his only voucher and evidence of the lialJility of the carrier. Under such circumstances, the verbal negotiations are merged in the written paper, which must be taken as the evidence, and the only evidence, of the final and deliberate agreement of the parties, except when fraud or mistake is shown; and mistake can only be shown as the ground of equitable relief to form the contract. The last class of cases is not without exceptions, as where the conditions are on the back of the receipt. See Railroad Co. v. Milnufactwring Co., 16 Wall. 318; Ayres v. Western R. Corp., 14 Blatchf. 14; Henderson v. Stevenson, 2 H. L. Sc. App. Cas. 470. There is another class of cases in which a party seeks to relieve hims6lf from the obligations of an implied contract with another, or to supplement the terms of an express contract by the force of printed or written regulations or notices. Notices or regulations made by those exercising a public, or quaQi public, employment, like carriers, express companies, telegraph companies, and savings banks, are familiar illustrations. In these cases the qnestion always is whether knowledge of the notice or regulation has been brought home to the

880

FEDERAL REPORTER.

other contracting party. The inference that it has been is sometimes irresistible, from the circumstances of the transaction out of which 'the contract originated. Thus, where the sender of a message by a telegraph company writes his message upon blanks furnished to him by the company, containing the conditions upon which the latter undertakes to act, the courts have held that, by delivering the message, the sender assents to the conditions specified. Young v. W. U. Tel. Co., 65 N. Y. 163; Wolfv. W. U. Tel. Co., 62 Pa. St. 83. So, also, bank at the time of making his deposit where a depositor in a receives from the bank and retains a pass·book containing printed conditions authorizing the bank to pay the deposit to any person producing the pass· book, it is held that the depositor assents to the conditions as a part of the contract. Schoenwald v. Metropolitan Sat'. Bank, 57 N. Y. 418. The authorities fall short, however, of supporting the proposition that assent is to be implied, as a matter of law, to the modification of a contract which has been concluded verbally by the acceptance by one party from the other of an order directed by the latter to his own agent, which is to be delivered to the agent, and retained by him. The order was a letter of instructions from the defendants to their own agents. The libelant's broker had no reason to assume that he was expected to study its terms. It was delivered to him, or to the master of the schooner, not to be retained by him as evidence of the verbal contract, but to be transmitted to the defendants' agent for his information. Treating it as a voucher that the master was to receive a cargo of coal from the defendants' agent, the master could not be expected to assume that it was intended to qualify the promise of the defendants that the cargo should be ready for delivery upon a speciried day. A somewhat analogous case is that where a ticket is accepted by a rail way passenger, which is to be held by him until delivered to the conductor as evidence of the payment of his fare. The passenger's assent to a special contract limiting the liability of the railway company respecting his is not to be implied from the circums1ance that there is a potice to such effect printed on the back of the ticket. Actual knowledge of the terms of the notice must be brought home to the passenger, and his acceptance of the ticket is only evidence for the jury of such knowledge. Brown v. Eastern R. Co., 11 Cush. 97. There is evidence, to which it is not important to refer, tending to show that both the libelant's broker and the master of the schooner were aware that similar orders to the one given here, contained printed conditions in substance like those on this order. But the witnesses were examined before the district judge, and, after a full opportunity to judge of their credibility, he came to the conclusion that they were not aware that the order in contained such conditions. His judgment on this question should be accepted as correct. The decree of the district court is therefore affirmed, with interest a.nd costs.

BRYANT V. THOMPSON.

881

BRYANT

and others v. THOMPSON and others.

(Oircuit Court, S.

1.

n. Iowa.

June Term. 1886.)

REMOVAL OF CAUSE-REVIEWING lNTERI,OCUTORY ORDERS OF STATE COURT.

The United States circuit court does not sit as a court of errors in a cause removed from a state court, but it has the same power to reverse or modify interlocutory orders or decrees of a state court as the state court would have had, had the cause remained there, or as it would have, had the cause originated in the United States circuit court.

2.

SAME-RENEWING MOTION WHICH HAD 'BEEN DISMISSED BY STATE COURTDISCHARGING RECEIVER.

A motion to discharge a receiver, made on the same grounds on which .it had been previously dismissed in the state court, will not be granted by the United States circuit court after removal of cause to the latter court.

In Equity. Motion to discharge receiver. T. C. Power and H. Scott Howell Ii; Son, for plaintiffs. S. L. GlasgoUJ, for defendants. LOVE, J. This cause is here by transfer from the district court of Iowa for the county of Des Moines. Before its removal a receiver was appointed by the state court to take possession of the property irl controversy, and to collect the rents and profits of the same. The defendant, prior to his application to have the cause transferred, moved before the state court for an order to discharge the receiver, and restore the possession of the property to him as the rightful owner. The grounds of this motion, among others, were that the appointment of receiver had been made improvidently, and without due notice to the defendant. The district judge seems to have considered this motion upon the defendant's answer, and such evidence as is applicable to such a proceeding, and, after hearing the arguments of counsel, be denied the motion, and entered an order overruling the same. The defendant now renews in this court his motion to remove and discharge the .receiver. He offers no evidence to support his motion in addition to that upon which the state district judge refused to grant his application. It is by counsel that this court does not sit as an appellate tribunal in cases transferred from the state court, but takes them, and proceeds with them to a final determination, just as they come from the state court; and therefore it is insisted that it is not coUlpetent here to review or reverse any proceeding that may have been had in the state court before the removal of the cause into this court. I am aware that this language is to be found in the decisions of some federal courts, but, without proper qualification, it is misleading. It is true that in removal cases the United States circuit court does not sit as a court of errors, and that as such it cannot review and reverse the interlocutory orders and decisions of the state courts. But it is nevertheless competent for the circuit court to set aside or modify v.27F.no.14-56

882

FEDERAL REPORTER.

any interlocutory orders or decisions made in the state court before removal, when it satisfactorily appears that such orders are errone.Jus. The circuit court after the removal certainly has the same power over the decisions made in the state court that it has over its own past rulings and orders in the cases commenced originally before it. If a case transferred had remained in the state court, it would have been entirely competent for that tribunal to have changed, modified, or set aside its own orders, when satisfied that they were erroneous. Thus, if the state court had granted a temporary injunction, it would have been competent for the same court, upon a proper showing, to set it aside. If it had, upon a proper hearing, denied a motion to dissolve an injunction, it would have been entirely competent for it to entertain another motion to dissolve, and to grant such second application upon a satisfactory showing. So, if a state court denies an application to remove or discharge a receiver, it may, so long as the cause is still before it, with competent jurisdiction. entertain and grant a subsequent motion for the same purpose. The same may be said of all its interlocutory orders. Now, when a cause is removed from the state court to the United States circuit court it stands in the latter just as it stood in the state court before removal. All orders and rulings in the state court remain in full force until they are changed or set aside in the circuit court. But the circuit court, certainly, has the same power over them-the same j1ll'isdiction to modify them or set them asidethat the state court would have had if the cause had not been removed. Interlocutory orl1ers made in the state court clearly do not, by virtue of their removal to the United States circuit court, receive any such additional force and effect as to preclude the circuit court from doing with them what the state court might have done if the cause had remained there. The circuit court certainly has the same power over interlocutory orders and decrees made in the state court before removal that it might exercise over its own past decretal orders and decisions in a cause originating before it. The United States circuit court will treat the decisions of the state court before removal with precisely the same respect, and give them the same force and effect, that it would' bestow upon similar orders and decrees made in its own tribunal; but it will not give them any greater force and effect than its own interlocutory orders and decisions would be entitled to. So much with respect to the power of the court to which a cause is removed. to change, set aside, or modify orders made in the state court while the callse was before it. It is nevertheless my judgment that the order made in this cause in the state court, denying the application to remove the receiver, should not, on the showing now presented, be set aside. Suppose a motion were made in this court to discharge a receiver of its own appointment, and suppose the court had refused to grant the application, would it entertain the same

KESSINGER V. HINKHOUSE.

8sa

motion a second time, and, without any additional evidence or show· ing, grant the application? It certainly would not. Without som6" most cogent reason the court would not set aside its own solemn judgment, entered after due ,consideration and full argument. Now, it appears that this same motion to discharge the receiver was made beIore the state district judge. It was argued before him, and the application denied. It is before us upon the same evidence and showing that were presented to the state judge. No additional evidence to support the motion has been adduced before us. We shall treat the judgment of the state judge just as we would our own decision under similar circumstances. We certainly would not, under such circumstances, reverse and set aside our own order, and we shall not reverse and set aside that of the state judge without some further and more cogent evjdence that it was erroneously or improvi. dently made.

KESSINGER

v.

HINKHOUSE.

(Circuit Court, S. D. IO'IDa. June Term, 1886.)
1.

REMOVAL OF CAUSE-JURISDICTION-MoTION TO REMAND.

On a. motion to remand a cause to the state court from which It was removed. the petition for removal is the basis of jurisdiction. It is notin the province of the pleadings in the state court to state the grounds of jurisdiction in theUnited States circuit court. Where a petition for the removal of a proceeding in equitr under the Iowa prohibition law, in which the complainant sought to obtam an injunction against the defendant to restrain him from the violation of that law, sets forth facts showing that the defendant had vested property rights at the time the law went into effect which the injunction would operate to destroy, held, that this raises a question under the fourteenth amendment to the United States constitution, depriving a person of property without due process of law, giving the United States circuit court jurisdiction.

2.

SAME-FEDERAL QUESTION-IOWA PROHmITION LAW-DEPRIVING PERSON OF PROPERTY WITHOUT DUE PROCESS OF LAW-FOURTEENTH AMENDMEN'r.

In Equity. D. C. Cloud, for plaintiff. H. J. Lauder, for defendant.
LOVE, J. This cause originated in the circuit court of Muscatine county, Iowa. It is a proceeding in equity, under the Iowa prohibition law, by which the complainant seeks an injunction the defendant to restrain him from a.violation of the Iowa liquor law, and a decree declaring the defendant guilty of keeping and maintaining a public and common nuisance. The cause has been transferred to this court by order of the Hon. NATHANIEL FRENCH, the judge of said circuit court, against the objections of the complainant, resisting said order. The complainant now moves to remand the oause to the sta.te court. The recognized ability and unquestioned impar-'